Salazar v. Buono: The Perils of Piecemeal Adjudication

The recent U.S.
Supreme Court decision in Salazar v.
Buono,[1]
a case involving a Latin cross placed on federal land in the Mojave
Desert by the Veterans of Foreign Wars, approaches what many would
assume to be the central issue in the case from an oblique.Does the Mojave Desert cross, sitting atop SunrisePeak in a federal park preserve, violate
the Establishment Clause of the First Amendment?Neither Justice Kennedy's plurality opinion
nor any of the concurring or dissenting opinions in Salazar answers that question.Salazar's complicated web of
facts and procedural history precluded the Court from resolving the most
compelling issue in the Salazar
litigation.[2]Instead, most of the opinions in Salazar circle the merits of the
constitutionality of the Mojave Desert cross in language ostensibly directed at
the remedy—the land transfer statute enacted to preserve the cross—but arguably
aimed at the cross itself.On a
charitable view, the plurality, concurring, and dissenting opinions simply make
the best of the facts and law given the tortured path of the case through the
lower courts.But it is not folly to
speculate that a different path would have presented cleaner issues for decision
and resolution, and would have given some closure to the litigants
involved.Perhaps most important, a
decision on the merits of the constitutionality of the Mojave Desert cross
could have clarified the trajectory of the Supreme Court's Establishment Clause
doctrine for future cases.[3]

This Essay briefly
reviews the facts and procedural history of Salazar,
and offers some thoughts on why the litigation may have proceeded as it did,
leading to piecemeal adjudication of an important constitutional issue.Finally, the Essay concludes with a
discussion of what Salazar may mean
for the future of the Supreme Court's Establishment Clause doctrine.

I. The Facts and Procedural History of the Salazar Litigation

In 1934, the Veterans
of Foreign Wars donated the Mojave Desert
cross to the Mojave National Preserve and perched it atop Sunrise Rock, where
it sat for nearly seventy years without legal challenge.The cross has existed in several forms over
the years, but its most recent iteration consists of four-inch diameter white
metal pipes; the cross itself stands somewhere under eight feet tall.[4]Citizens have used the area around Sunrise
Rock as a campsite and have held Easter services at the site of the cross.[5]In 1999, however, the park service received a
request to install a "stupa," or Buddhist shrine, near the cross.[6]The National Park Service denied the request
but announced that it would remove the cross.[7]In response to the Park Service announcement,
Congress passed legislation to prevent federal money from being used to remove
the cross.[8]Meanwhile, Frank Buono, a retired National
Park Service employee and former assistant superintendent of the Preserve, with
the help of the local ACLU, sued to have the cross removed on the ground that
it violates the Establishment Clause of the First Amendment to the U.S.
Constitution.[9]As a retired park service employee who
regularly visits the preserve, Buono reportedly drove out of his way to avoid
the cross on his visits, not because of religious offense (he is Catholic), but
because he is offended by the presence of a religious symbol on public property
where other symbols are not also allowed to be displayed.Buono obtained an injunction to have the
cross removed,[10]
and the Park Service covered up the cross, first with a tarp and then with a
plywood box during the pendency of the litigation.[11]Before Buono obtained the injunction from the
district court,[12]
however, Congress passed legislation designating the Mojave Desert cross a
national memorial "commemorating United States participation in
World War I and honoring the American veterans of that war."[13]

The government
appealed the injunction to the Ninth Circuit Court of Appeals, arguing that the
Mojave Desert cross did not violate the Establishment
Clause and that Buono lacked standing to challenge the monument.[14]While the parties awaited a decision,
Congress passed legislation barring the use of government funds to dismantle
World War I memorials.[15]Congress subsequently entered into the land
exchange at issue in Salazar.Under the proposed land transfer, the
government would give to the local VFW the cross and one acre of land on which
the cross sits in exchange for five acres of land in the same preserve—a parcel
owned by veteran Henry Sandoz and his wife.[16]The statute contained a reverter in favor of
the government if the VFW failed to maintain the property as a "war memorial,"[17]
but, given that the Sandozes had maintained the cross display since 1998, it
was safe to assume that they would continue to maintain not just any memorial,
but the cross that historically had been displayed at the site.[18]

When the Ninth Circuit
rendered its decision on the injunction appeal, the government lost on both the
merits and the standing issues.[19]Rather than appeal the Ninth Circuit's
decision on the injunction to the U.S. Supreme Court, however, the government
allowed the time for appeal to lapse.Meanwhile, Buono challenged the land transfer in the district court on
the ground that the transfer violated the injunction.Specifically, Buono characterized the land
transfer as an unconstitutional ruse to keep the cross in place, rather than a
legitimate attempt to comply with the original injunction.[20]The government lost,[21]
appealed, and lost for the second time in the Ninth Circuit.[22]This time, however, the government sought
review from the U.S. Supreme Court on the issues of whether the land transfer
violated the injunction and whether Buono had standing to challenge it in the
first instance, but not whether either the Mojave Desert cross or the land
transfer violated the Establishment Clause.[23]Thus, the somewhat complicated facts and
procedural history before the Supreme Court left it with few options other than
to dispose of the case on standing grounds (an unlikely result), to reconcile
the land transfer statute with the final injunction, or to find that the land
transfer violated that injunction.

Justice Kennedy's
plurality opinion, joined by Chief Justice Roberts and joined in part by
Justice Alito, grudgingly acknowledges the District Court's decision, affirmed
on appeal, that the Mojave Desert cross violates the Establishment Clause.[25]On the issue of whether the land transfer can
be squared with the injunction, however, the plurality remanded the case so that
the district court could consider the "change of law" created by congressional
action.[26]According to the plurality, the land transfer
resulted from a "congressional statement of policy applicable to the case" that
the district court failed to consider: the policy of accommodation.[27]According to the plurality, "[t]he
Constitution does not oblige government to avoid any public acknowledgment of
religion's role in society.Rather, it
leaves room to accommodate divergent values within a constitutionally
permissible framework."[28]

Given the plurality's
broad statements about the virtues of accommodation and the district court's
supposed error in that regard, it seems curious that the plurality did not
simply decide the issue in favor of the government.The additional reason given for the remand is
not particularly persuasive.Justice
Kennedy stated that the district court's original injunction was based on the
perception of endorsement under the "effect" prong of Lemon v. Kurtzman,[29]
while the court later enjoined the land transfer based on congressional intent,
i.e., the "intent" prong of Lemon.[30]Putting aside the questions of whether this
analysis metastasizes Lemon into
several doctrines instead of one and whether the analysis is an unduly
stringent construction of the injunction,[31]
the question itself points to a very simple fix.The district court need only rephrase its
earlier conclusion to declare that a reasonable observer would perceive the
land transfer as an attempt by Congress to endorse religion.Why the plurality demands that the district
court spell out this conclusion on remand is a puzzle, unless the plurality
expects the district court to reach a different one.[32]

Justice Kennedy's
plurality opinion rests on very narrow ground; nonetheless, it states some
broad propositions about the Establishment Clause.While distancing itself from the lower court
decision, the plurality notes that "[t]he goal of avoiding governmental
endorsement does not require eradication of all religious symbols in the public
realm."[33]The opinion leaves little doubt about how the
plurality would have decided the case on the merits of the constitutionality of
the Mojave Desert cross; likewise, there is
little doubt about the direction the plurality expects the district court to
take on remand.

Justice Alito would
avoid this extra step; his concurrence reaches out to hold that the land
transfer does not violate the injunction at all.[34]Justice Alito's opinion recasts the
characterization of the Mojave Desert cross in
unmistakable terms:

[T]he
original reason for the placement of the cross was to commemorate American war
dead and, particularly for those with searing memories of The Great War, the
symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable
image of the white crosses, row on row, that marked the final resting places of
so many American soldiers who fell in that conflict.[35]

For the dissenters,
Justice Stevens, joined by Justices Ginsburg and Sotomayor, provided a forceful
defense of the district court's finding of endorsement.[36]Justice Stevens recognized the obvious: that
Congress intended the land transfer to preserve the cross.[37]Moreover, because Congress designated the
cross a national memorial, the lower court's finding of endorsement of religion
should apply to the Mojave Desert cross
whether it sits on public or private land.[38]Speaking directly to the plurality, Stevens
rejected the proposition that a congressional motive of accommodation could
overcome a finding of endorsement of religion.[39]Justice Stevens highlighted the significance
of the cross as a sectarian symbol throughout the dissent, and he countered the
plurality's and Alito's contrary characterizations as an attempt to re-decide
the underlying issue of whether the Mojave Desert cross violates the
Establishment Clause.[40]

III. The Path of Least Resistance

The reason that the
opinions in Salazar fail to squarely
address the issue of whether the Mojave Desert cross violates the Establishment
Clause is simple: the district court's injunction and the finding upon which it
was based, affirmed in the Ninth Circuit, became final and binding res judicata
when the government failed to timely appeal that earlier decision to the U.S.
Supreme Court.[41](As if to deflate any contrary expectations,
Justice Breyer noted at oral argument that the only remaining legal dispute in
the case was the "very technical boring issue" of whether in enacting the land
transfer statute the government would be in compliance with the injunction.[42])It follows, then, that the proximate reason
that the issue was foreclosed amounted to the government's decision not to
appeal the Ninth Circuit's original adverse ruling.[43]That decision may have left some scratching
their heads.If the government wanted to
win, why not press its case all the way to the Supreme Court?

Had the Supreme Court
been tasked with discerning the constitutionality of the Mojave Desert cross
itself, the government would have had at its disposal some strong arguments
based on a pair of 2005 Supreme Court Ten Commandments decisions—Van Orden v. Perry[44]
and McCreary County v. ACLU.[45]The Mojave Desert cross had a 68-year
historical pedigree, reminiscent of the 40-year Texas Ten Commandments display
upheld in Van Orden.Unlike the Ten Commandments display struck
down in McCreary, the Mojave Desert
cross was donated by the Veterans of Foreign Wars, rather than having been
commissioned by the government.Likewise, the Mojave Desert cross had a
long usage as a commemoration of the war dead, in addition to its religious use
as a site for Easter services.[46]In his contribution to this symposium,
Professor Lund stresses the profound religious significance of the cross to
Christian believers, a fact which distinguishes it from the Ten
Commandments—and no doubt he is right.[47]Yet the history of the cross as a symbol of
the slain, regardless of whether that meaning also has a religious connotation
and regardless of its effect on those who do not embrace that connotation,
resonates more closely with the prevailing view in Van Orden.[48]Nevertheless, neither Van Orden nor McCreary
had been decided at the time of the Ninth Circuit's decision upholding the
district court's finding of unconstitutionality.In fact, the Ninth Circuit issued a decision
on the merits in June of 2004,[49]
and the deadline to appeal passed two months later.The Supreme Court did not grant certiorari in
Van Orden and McCreary, however, until October of that year.[50]Therefore, the government in its second
appeal to the Ninth Circuit was left with the argument that the decisions in Van Orden and McCreary made the original injunction moot, a position the Ninth
Circuit apparently rejected.[51]

Without Van Orden and McCreary to provide a template for Supreme Court litigation
involving religious symbols, the government likely analyzed the potential fate
of the Mojave Desert cross under the Court's prior pair of symbols cases—Lynch v. Donnelly[52]
and County of Allegheny v. ACLU.[53]A critical factor in evaluating the
application of those cases was probably an attempt to predict the vote of
Justice Sandra Day O'Connor, whose endorsement test was introduced in her
concurrence in Lynch and adopted by
the Supreme Court in County of Allegheny.[54]Although the Court in Lynch
upheld the crèche in that case—a manger scene surrounded by a hodgepodge of
Christmas holiday fare[55]—a
plurality of the Court in County of
Allegheny applied O'Connor's endorsement test to strike down a stand-alone
crèche in a county courthouse.[56]The endorsement test, the framework the district
court used to invalidate the Mojave Desert
cross,[57]
has been applied in numerous lower court cases to invalidate other religious
displays.[58]Whether the Supreme Court would have applied
the endorsement test and how Justice O'Connor would have voted were two big questions
that the government likely could not answer with any degree of certainty.[59]

Viewed in light of
this ambiguity, the government's decision (assuming it was a decision) to let
the time for appeal of the injunction lapse and defer to Congress to solve the
problem made sense.Congress postponed
the need to ponder doctrinal uncertainties when it enacted the land transfer.[60]Congressional action represented an easy
solution by a group of actors who were politically motivated to preserve the
veterans' memorial cross.Ultimately,
however, congressional action must pass constitutional muster, and the final
arbiter of that question is the United States Supreme Court.So one way or another, one would expect that
the issue of the constitutionality of the Mojave Desert cross would likely end
up before the Supreme Court—if not on its own, then tangled up in the
legislation designed to keep the cross in place.

Unfortunately, Salazar presented the issue of the
constitutionality of the Mojave Desert cross
twice removed.However, the opinions in
the case occasionally pierce through to the merits, and also provide some
insight into the Justices' views regarding the Court's Establishment Clause
doctrine.

IV. The Future of the Supreme Court's Jurisprudence of Monuments and Symbols

Although the Salazar decision does not directly
address the constitutionality of the Mojave Desert
cross, the case does provide some potential insight into the current Court's
approach to religious monuments and symbols.It can be argued that a slim majority of the Court now favors the principle
of accommodation.Justice Kennedy's
plurality decision makes the case for accommodation in broad terms, and Justice
Alito's concurrence strikes a similar chord.[61]Justices Scalia and Thomas would have denied
the plaintiff standing to challenge the land transfer, but both Justices have
been stalwart supporters of the principle of accommodation in the past.[62]Even Justice Breyer has stated
previously that cultural strife may be avoided when the Court's Establishment
Clause jurisprudence does not demand removal of every longstanding religious
symbol from the public square.[63]

The fact that a
majority of the Court appears to support the principle of accommodation of
religion raises certain implications for the endorsement test.Some of the commentary on the meaning of the Salazar opinions involves speculation
about whether the Supreme Court continues to be committed to Justice O'Connor's
endorsement test as a measure of the Establishment Clause.[64]In an earlier article on the Court's government speech decision in Pleasant Grove City v. Summum, I argued
that Justice Alito's majority opinion signaled a possible retreat from the
endorsement test.[65]Justice Alito, writing for all of the
Justices except Justice Souter, seemed to suggest in Summum that the Court no longer views monuments and symbols through
an exclusively outsider lens.Alito
stated that a monument "may be intended to be interpreted, and may in fact be
interpreted by different observers in a variety of ways."[66]Particularly in the context of symbols and
displays, without a reasonable observer who can discern a message of exclusion
the endorsement test loses much of its content.

Now, in Salazar, a case that began as litigation
under the Establishment Clause, Justice Alito's concurrence and Kennedy's
plurality opinion appear to confirm the move from no-endorsement toward its
opposite pole, accommodation.[67]The accommodation to which the Court referred
shifts the focus away from whether a hypothetical observer may perceive an exclusionary
message.Instead, as its definition
suggests, accommodation requires that the parties attempt "a reconciliation of
differences,"[68]
and it invites potential litigants to make peace with some traces of religion
in public life.Commentators have
recognized that an unyielding Establishment Clause jurisprudence leaves the
losing side no less alienated than the group prevailing in a lawsuit.[69]One can only imagine the stakes being higher
in the case of the proposed removal of a veteran's memorial, a lone cross in a
remote desert outpost.Picking up on
this intuition, Justice Alito repeatedly warned that the alternative to
accommodation would lead to the "disturbing symbolism" of the dismantling of
the Mojave Desert cross and other symbols and
monuments like it.[70]

Nonetheless, the shift
to accommodation in Salazar is made
piecemeal, and for that reason, there is room for disagreement about the
direction of the Court's symbols and monuments cases.For example, in contrast to my explanation,
Professor Mary Jean Dolan argues in her symposium piece that Justice Alito's
opinion in Summum and his concurrence
in Salazar, along with the reasoning
of the Salazar plurality, all depend
on a contextual understanding of monuments that is the hallmark of the
endorsement test.[71]Professor Dolan therefore suggests that in Salazar, the endorsement test's basic
inquiry survives alongside accommodation as two points on a continuum rather
than as opposite poles.[72]While plausible, this interpretation fails to
adequately account for the fact that Justice O'Connor's endorsement test
focuses on the message conveyed to a religious outsider,[73]
but the Salazar plurality and Justice
Alito's concurrence do not.[74]Under the endorsement test, a key question is
whether a reasonable observer who views the Mojave Desert
cross would perceive a message of religious exclusion.[75]

On the other hand,
Justice Alito's concurrence in Salazar
notes that multiple observers have understood the Mojave desert cross to convey
"at least two significantly different messages"—one religious, and one historical.[76]Moreover, the fact that Justice Alito's Salazar concurrence expands the
discussion to include observers who would be offended by the symbolism of
having the cross removed runs counter to the logic of the endorsement test.[77]In fact, nowhere in Salazar does Justice Alito connect the "disturbing symbolism" of
the destruction of the monument with the perceptions of the endorsement test's "reasonable
observer."[78]Rather, to the extent that Justice Kennedy's
plurality opinion in Salazar
discusses the proper application of the endorsement test, it seems, as the
plurality notes from the outset, that it is simply constrained by res judicata.[79]

The potential
ascendancy of accommodation, however, presents challenges for its
advocates.Professor Stanley Fish
maintains that to "de-religionize" a monument to argue in support of its
constitutionality is disingenuous; of course everyone knows that the cross is a
religious symbol.[80]This assertion, while true, oversimplifies
Justice Kennedy's argument in an important respect.The Mojave Desert
cross is religious and secular at the
same time; Kennedy's argument rests on a "both and", rather than an "either or"
proposition.[81]In many cases, the religious aspect of the
symbol is an irreducible and historically-identified component.A virtue of accommodation is that it does not
demand a choice between two undesirable extremes—on the one hand, an obsessive
focus on religion to the exclusion of important historical and cultural
realities; and on the other, an implausible denial of a symbol's religious
character.

Perhaps a more serious
challenge for religionists is the assertion that they can only obtain something
of a Pyrrhic victory when the constitutionality of a religious symbol like the
cross rests on the conclusion that the cross is also secular.As Professor Bartrum explains in his
contribution to this symposium, a legal doctrine that emphasizes the secular
aspects of a religious symbol arguably empowers the state to exercise a "corruptive
power" over religion.[82]He reminds us of the revival of scholarship
on the legacy of Roger Williams, founder of Rhode Island and the intellectual forebear
of modern-day evangelicals, who adamantly opposed state intrusion into the
garden of religious life.[83]Nonetheless, it is far from clear that eighteenth century evangelicals
would have opposed public religious symbols and monuments on separationist
grounds.[84]Further, as to these evangelicals' modern-day
counterparts, the litigation of these issues reveals that religionists
themselves appear to perceive little internal threat from Supreme Court
statements about the secular character or appeal of religious symbols.[85]

But all of this is not
to suggest that we know precisely what accommodation means or what its limits
are.[86]In the context of symbols and monuments
accommodation may still be "a label, not a theory."[87]If accommodation is, in fact, the Court's new
direction, then it will be important to understand its scope, and Salazar, unfortunately, does not aid in
that process.[88]

Conclusion

The long-awaited
decision in Salazar v. Buono offers a
partial view into the future of the Court's Establishment Clause doctrine.The decision would have offered a nearly perfect
window if the constitutionality of the Mojave Desert
cross had been the central issue in the case.Instead, the piecemeal litigation in Salazar
leaves us with many unanswered questions, and perhaps more litigation
ahead.Salazar returns the dispute to the district court for a
re-evaluation of the propriety of the land transfer.We are told that, on remand, the district
court is to consider the policy of accommodation.[89]Perhaps we are also told that, in the coming
years, a majority of the Supreme Court will be guided by it as well.

————

*. Jessie D. Puckett, Jr. Lecturer
and Associate Professor, University of
MississippiSchool of Law.I am grateful to the other symposium
participants, Ian Bartrum, Mary Jean Dolan and Christopher Lund, and also to
Rick Esenberg for their thoughtful comments and responses.Many thanks to the editors of the
Northwestern University Law Review for their work on this essay.I also thank Nakimuli Davis for research
assistance.The Lamar Order provided a
research grant to support this essay.

18. Henry
and Wanda Sandoz had maintained the cross since 1983.In 1998 Mr. Sandoz constructed the most
recent version of the monument.Salazar, 130 S. Ct.
at 1812.According to Sandoz, he made a
promise to a dying veteran to preserve the monument.Mojave
Cross, Religion & Ethics News Weekly (Oct.2, 2009), http://www.pbs.org/wnet/religionandethics/episodes/october-2-2009/mojave-cross/4424/
(link).

31. Ironically,
in the lower court proceedings following Lemon,
the Court was more generous when it considered whether a subsequent injunction
fulfilled the Court's mandate in that case.SeeLemon v. Kurtzman, 411 U.S. 192 (1973) (link).

32. See Salazar, 130 S.
Ct. at 1820–21 (suggesting that the district court on remand
should analyze the land transfer in the context of "all relevant factors"
including the congressional policy of accommodation).

41. Id.
at 1815 ("The District Court granted the 2002 injunction after concluding that
a cross on federal land violated the Establishment Clause.The Government unsuccessfully challenged that
conclusion on appeal, and the judgment became final upon direct review. . . .The Government therefore does not—and could
not—ask this Court to reconsider the propriety of the 2002 injunction or the
District Court's reasons for granting it.").

43. I
assume for the purpose of this essay that the Department of Interior would have
wanted to obtain a judgment from the Supreme Court that overturned the Ninth
Circuit ruling but either made a strategic decision not to petition for a grant
of certiorari to obtain such a judgment or simply missed the deadline for
filing an appeal.

44. 545
U.S. 677 (2005) (upholding the constitutionality of a 40-year old Ten
Commandments display donated by the Fraternal Order of Eagles) (link).

45. 545
U.S. 844 (2005) (striking down a relatively recent government display including
the Ten Commandments) (link).

48. Seeinfra
p. 83; Van Orden, 545 U.S. at 701 (Breyer, J., concurring); see also Salazar, 130 S. Ct. at 1817 (citing
Justice Breyer's concurrence in Van Orden);
Van Orden, 545 U.S. at 691–92
("The inclusion of the Ten Commandments monument in this group has a dual
significance, partaking of both religion and government.").

53. 492
U.S.
573 (1989).Stone v. Graham, an earlier case applying the Lemon test, involved a Kentucky
statute that required the posting of the Ten Commandments in every public
school classroom.449 U.S. 39 (1980).

54. Justice
O'Connor's articulation of the endorsement test focuses on whether government
symbols send "a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community."Lynch, 465 U.S. at 688 (O' Connor, J.,
concurring).O'Connor added that
"[d]isapproval sends the opposite message."Id.

56. Cnty.
of Allegheny v. ACLU, 492 U.S. 573 (1989) (link).In Allegheny,
a plurality of the Court distinguished Lynch
on the ground that the crèche in that case had been surrounded by other items
that detracted from its religious message, while the crèche in the county
courthouse stood alone.Id.at 598.

59. Although
Justice O'Connor's endorsement test focuses on whether nonadherents are made to
feel like outsiders, this expansive understanding of the Establishment Clause
conflicts with O'Connor's approval of civil references to religion such as the
Pledge and "In God We Trust" on the currency, sometimes described as
"ceremonial deism."On more than one
occasion O'Connor defended the doctrine of ceremonial deism, notably in her
concurrence in the Pledge of Allegiance case, in which she argued that one
factor weighing in favor of the Pledge was its "history and ubiquity."Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 37–38
(2004) (O'Connor, J., concurring).

61. The
Chief Justice's somewhat cryptic concurrence reveals no motive to effect a
doctrinal sea change, but the fact that he joined in Justice Kennedy's
plurality opinion is sufficient to show agreement with the dicta in support of
accommodation.

66. Pleasant
Grove City v. Summum, 129 S.
Ct. 1125, 1134–35 (2009).I
do not read Justice Alito's language in Summum
as an assertion that monuments have no meaning.Contra Dolan, supra note 65, at 52.Rather, Justice Alito's Summum
opinion introduces the idea that there are multiple, real observers to any
monument, and that a monument's perceived meaning depends on these actual
perspectives.This is consistent with
the idea that in the case of certain monuments, such as the Statue of Liberty,
there can be a widely-shared consensus on a prominent meaning conveyed by the
monument.See id. at 52–53 (citing Summum,
129 S. Ct. at 1135).

67. In
Salazar, for example, Justice Alito
asserts that observers of the Mojave Desert
cross "appear to have viewed it as conveying at least two significantly
different messages."Salazar, 130 S. Ct. at 1822 (Alito, J.,
concurring in part and concurring in the judgment) (citing Summum 129 S. Ct. at 1135).

70. Salazar, 130 S. Ct.
at 1823–24 (Alito, J., concurring in part and concurring in the judgment) (referring
to the "arresting symbol" and the "disturbing symbolism" of the destruction of
the monument).

73. Lynch, 465 U.S. at 688 (O'Connor, J.,
concurring); seesupra note 55.Justice O'Connor's endorsement test arguably served her vision of a
society that would, as she described, "place ourselves in another's shoes, to
see things that may not be as fair or as equitable as they appear from our own
vantage points."Sandra Day O'Connor, The Majesty of the Law: Reflections of a
Supreme Court Justice 276 (2003).

74. Professor
Dolan acknowledges the lack "of any noticeable attention to the perceptions of
offended viewers and religious outsiders" in the Salazar plurality opinion and Justice Alito's concurrence but
explains that the lower court decision may have rendered such a discussion
unnecessary.Dolan, supra note 65, at 19.

75. Lynch, 465 U.S. at 688 (O'Connor, J.,
concurring); Buono v. Norton, 371 F.3d 543, 547-50 (9th Cir. 2004) (discussing
plaintiffs' standing and the merits); Salazar,
130 S. Ct. at 1832 (Stevens, J., dissenting) (stating the test as prohibiting
government from "appearing to take a position on questions of religious belief
or from ‘making adherence to a religion relevant in any way to a person's standing
in the political community'" (quoting Cnty.
of Allegheny, 492 U.S. 573, 593–94 (1989) and O'Connor's concurrence in Lynch, 465 U.S. at 687)).

76. Salazar, 130 S. Ct.
at 1822 (Alito, J., concurring in part and concurring in the judgment).

77. There
is one possible argument that Justice Alito's observations may be harmonized
with the endorsement test.Justice
O'Connor's initial formulation of the endorsement test contained a sentence
that recognized the possibility of government disapproval of religion which
presumably could lead to an Establishment Clause violation.See
Lynch, 465 U.S.
at 688 (O'Connor, J., concurring).Nonetheless, to consider whether a monument's demolition, deemed
necessary under the endorsement test, constitutes disapproval of religion under
the same test, would collapse the test.Cf., e.g., Vasquez v. Los AngelesCounty,
487 F.3d 1246, 1257 (9th Cir. 2007) (rejecting argument that removing of cross
from county seal evinced hostility to Christianity) (link).

78. SeeSalazar,
130 S. Ct. at 1823–24 (Alito, J., concurring
in part and concurring in the judgment).

79. Id. at 1818 ("Although, for purposes of
the opinion, the propriety of the 2002 injunction may be assumed, the following
discussion should not be read to suggest this Court's agreement with that judgment,
some aspects of which may be questionable. The goal of avoiding governmental
endorsement does not require eradication of all religious symbols in the public
realm.").Similarly, the plurality qualifies
its use of the reasonable observer with citations to earlier criticisms of the
endorsement test.See id. at 1819.Justice
Alito's concurrence voices the same skepticism.Id. at 1824(Alito, J., concurring in part and concurring
in the judgment) ("Assuming that it is appropriate to apply the so-called
‘endorsement test', this test would not be violated by the land exchange.").

80. Stanley
Fish, When Is a Cross a Cross?, N.Y. Times Opinionator Blog, May 3,
2010, http://opinionator.blogs.nytimes.com/2010/05/03/when-is-a-cross-a-cross/.

83. See, e.g., Mark deWolfe Howe, The Garden and the Wilderness: Religion and
Government in American Constitutional History (1965).

84. SeeHowe,
supra note 84, at 172 ("The refusal of the Court to recognize that
the importance of [the Establishment and Free Exercise Clauses] for most
persons lay in the assurance that intruders from the federal wilderness would
not trespass in the gardens of religion produced a gravely distorted picture of
American intellectual and spiritual history.Furthermore, it permitted the Court to fill the space from which it had
removed the vivid complexities of the eighteenth century's political philosophy
with a simple and false absolute—all aid to religion is unconstitutional.").But seeMartha C. Nussbaum, Liberty of Conscience 306–16 (2008).

85. See, e.g., Amici
Curiae Brief of the American Center for Law and Justice and Fifteen Members of
Congress in Support of Petitioners, Salazar v. Buono, 130 S. Ct. 1803 (No.
08-472) (link); Brief for Amicus Curiae Liberty Counsel in Support of
Petitioners, Salazar v. Buono, 130 S. Ct 1803 (No. 08-472) (link); Brief Amici
Curiae of the Christian Legal Society and the National Association of Evangelicals
in Support of Petitioners, Salazar v. Buono, 130 S. Ct. 1803 (No. 08-472)
(link).Two of the three amicus
briefs mentioned above argue that Buono lacks standing, but their participation
in the litigation shows their willingness to defend the public display of the Mojave Desert cross.

86. See, e.g., Cnty. of Allegheny v. ACLU, 492 U.S. 573, 559 (1989) (Kennedy, J.,
concurring in the judgment in part and dissenting in part) ("The ability of the
organized community to recognize and accommodate religion in a society with a
pervasive public sector requires diligent observance of the border between
accommodation and establishment.").One
limit may be found in Justice Kennedy's Salazar
plurality opinion; he provides the same example of a forbidden establishment
found in his Allegheny opinion—a
Latin cross atop city hall.Salazar, 130 S. Ct. at1816; Allegheny, 492 U.S. at 661
(Kennedy, J., concurring in the judgment in part and dissenting in part).

87. Michael
W. McConnell, Accommodation of Religion,
1985 Sup. Ct. Rev. 1, 4
(1985).Then-Professor McConnell devoted
his article to the discussion of legislative accommodations and free exercise
exemptions, not the public display of religious symbols and monuments.See id.;
see also Michael McConnell, Accommodation of Religion: An Update and a
Response to the Critics, 60 Geo.
Wash. L. Rev. 685, 687 (1992) (excluding symbols cases from discussion of
the theory of accommodation).

88. Salazar, 130 S. Ct. at 1820 ("To date,
this Court's jurisprudence in this area has refrained from making sweeping
pronouncements, and this case is ill suited for announcing categorical rules").